Report on the Reporter - "Double Revolving Peripatetic
Note: Professor Paul R. Baier of Louisiana State University
Law Center, who served as Judicial Fellow at the Supreme
Court in 1975-76, conducted a television interview with
Henry Putzel, jr., who retired in February, 1979 as
the thirteenth Reporter of Decisions of the Supreme
Court. At the time of Mr. Putzel's retirement, Chief
Justice Warren E. Burger said in open court:
The work of the Reporter of Decisions is not known to
the public but is of great importance to the courts,
the legal profession and to the public. Mr. Putzel has
performed the exacting duties of that important office
with great distinction and in keeping with the tradition
of the twelve men who preceded him in that position.
The Court wishes to pay tribute to him and wish him
well for the years ahead. (99 S.Ct. CLIV)
previous treatment of the work of the Reporter of Decisions,
see Gerald T. Dunne's article, "Early Court Reporters,"
in Yearbook 1976 and the description of the office in
Barrett McGurn's review of the officers of the Court
in Yearbook 1979. The present article not only complements
these earlier articles but advances two objectives of
the Supreme Court Historical Society: informing the
general reader, through the Yearbook and other SCHS
publications, of little-known activities within the
Supreme Court; and encouraging oral history recordings
of such activities through interviews with persons responsible
main title for this article comes from a description
that Mr. Putzel himself gave, during the course of the
interview, of the qualifications for and duties of the
job he held for fifteen years. More sedately, the original
video tape interview is entitled, "A Conversation with
Mr. Henry Putzel, jr." It should go without saying that
the printed version of an interview of this sort cannot
project the important nuances of the spoken word and
cannot, without losing the important off-the-cuff flavor,
achieve the standards of grammar and accuracy that a
Reporter would insist upon in a more formal context.
The video tape and the transcript are copyrighted by
Messrs. Baier and Putzel, and the following is reproduced
by permission of the copyright owners. W. F. S.)
labors unnoticed inside the world's loftiest judicial
tribunal, the Supreme Court of the United States. Above
his desk, as if to remind him of his celebrated lineage,
hangs a portrait of William Cranch, John Marshall's
Reporter of Decisions. His job is to catch errors in
the Justices' opinions, to keep the United States Reports
letter-perfect, and to write the syllabi in all of the
Court's opinions. Volume 426 of the United States Reports
is the fiftieth volume of official reports published
under his painstaking care.
is Mr. Henry Putzel, jr., thirteenth Reporter of Decisions
of the Supreme Court of the United States.
Putzel, I suppose it's true that most people would have
no idea who you are, where you work, what you do, have
any idea of who is Mr. Henry Putzel. Now, first, would
you tell us what the Reporter of Decisions is?
But on your first questionI sometimes wonder,
too, about my identity.
I think that perhaps I can clarify a little bit by reporting
on the Reporter. I, as you indicated, am thirteenth
Reporter of Decisions and it may be of interest to know
that in the history of the Court, there have been 15
Chief Justices, but there have been only 13 Reporters
of Decisions. If you get out your computer, I suppose
this means great longevity. Now, I am not out to set
any world records, by the way, but I have some illustrious
predecessors and our function has changed over the years
quite a bit.
the early days the Reporters were in the courtroom and
took down as best they could what the Court was handing
down and gradually that changed somewhat. The
Reporters now have a more limited function, one that
is, I think, no less important, but it's not quite the
same as it used to be. And, primarily, we have the two
functions of writing the syllabi or headnotes and making
editorial changessuggestions ratherto the
have nothing to do with newspaper reporting?
indeed. It's rather amusing. I have a letter, maybe
I can just read you an excerpt from it here, that my
predecessor Waiter Wyatt, who was a very
distinguished manhe used to be the General Counsel
of the Federal Reserve Board and served as Reporter
of Decisions for, I think, about 20 years, and he got
irked at this confusion in the meaning of the word Reporter
and he wrote this letter to the Chief Justice, who was
then Fred M. Vinson. This was January 21, 1953. He said:
"In order to avoid confusion and some embarrassment
it is respectfully requested that in the United States
Reports, the Congressional Directory and other official
publications, I be permitted to list my title as Reporter
of Decisions instead of merely as Reporter. From time
to time I am plagued by letters and personal calls from
people who think I am a stenographic court reporter
or who desire either stenographic employment on my staff
or to obtain transcripts of oral arguments. I have recently
been informed"I think this is what sparked the
whole thing"that a similar misunderstanding on
the part of those charged with making the seating arrangements
for the inauguration of President Eisenhower may have
been partly responsible for the difficulties incurred
in obtaining proper seating arrangements for the Reporter
since one of them told the Marshal that he thought the
Reporter was just a stenographer!" So that's
how it came to be changed from Reporter to Reporter
you speak of the syllabi and the head-notes, they are
attached to what? What are you synopsizing when you
do your work?
we're summarizing the opinions of the Court, which now
we get in advance. Starting with the 1970 term of Court,
the Court authorized that opinions be headnoted in advance.
The purpose of this was to aid the press and I think
it has performed that function rather admirably and
we now see the opinions before they come down and the
head-notes are written, submitted, and published when
the opinion is issued in Court.
they hard to write?
Well, they vary considerably, and some of them are fiendishly
hard to write and some of them are not so difficult.
Some seem to fall into place very logically and easily.
It's hard to generalize because even if you've looked
at what looks like a simple headnote it doesn't mean
that, the Reporter or his assistantby the way,
the Assistant Reporter also helps with
the headnotes and we divide them up. Both the Reporter
and the Assistant have to be lawyers, of course.
Frankfurter has an essay entitled "Chief Justices I
Have Known." Well, you have known plenty
of headnotes. Do you recall any in particular that were
excruciatingly difficult to write?
I wish I'd had more time to prepare myself for that
question because I'm sure if I had a chance to go back
over the books I could find plenty of good illustrations.
I remember the New Haven Inclusion Cases
as being one where factually there was great
difficulty in trying to present the complicated railroad
reorganization situation concisely. I believe it was
in that one, it may have been another one of the railroad
cases that took 6 pages of 9 point type to write the
syllabus, but of course we try to make them as brief
as we can and the question is always one
of judgment: What point is at the nub of the case, and
you would have to assume certain things that are notthey
may be quite importantbut they are not what the
case is primarily about. For example, a Justice might
start off an opinion by referring to the fact that on
a motion to dismiss the complaint the facts are taken
as stated. Well, if that is just incidentally mentioned,
it would not be headnoted, although it could become
part of the headnote if it were the central or focal
part of the case.
the headnote have a physical structure?
it does and it is a format that I inherited; it's been
in existence for a long time and it has certain set
unwritten rules. The factual part is stated m one paragraph
and the purpose of that is again not to get too discursive
in the headnote, not to break it up; and even in a very
long case where paragraphing ordinarily would be used,
this holds the Reporter down as much as possible to
limits and also you don't wantphysicallyyou
don't want to spread over more territory than you have
legal partif there's one holdingwill be
stated right after the word "held" and then you will
have subdivisions, perhaps (a), (b), and (c). If there
are several holdings you will have an arabic numeral:
Held 1, Held 2, and so on, and perhaps some letter designations
under those. But we don't go beyond that. We don't have
sub-divisions, again to keep the thing within bounds.
your headnoting subject to the approval of the Justicethe
author of the opinion?
is and it isn't. Sometimes Justices when
they return the headnote to me make so-called "suggestions."
Of course, the Reporter is going to abide by the suggestions,"
but we emphasize, the Court emphasizes, that headnotes
or syllabi are the work of the Reporter and not the
official body of law. In Ohio, for example, the headnote
is the law and not the opinion. And perhaps there
are some other states, I think, maybe, is it Kansas?
or perhaps Kentucky, I'm not sure what the others are.
have a case where a lawyer relied on one of your headnotes
in his argument?
No, but this happened many years ago in a case, I think,
in, oh yes, it's United States v. Detroit
Lumber Co., in 200 U.S. 321; and at 337 of that
old case, the Court mentions in its opinion that the
headnote is the work of the Reporter not the Court.
It has nothing official to it, but in that case the
lawyer tried to argue that the headnote had some legal
you tell us what the requirements to become a Reporter
of Decisions are?
first of all, he has to be a lawyer. And I'd say he
should be a word nut. And in the third place, I think
he, well I think he should be a double revolving peripatetic
nit-picker. We look over somebody's shoulders and we're
was that again?"a double revolving
Putzel, how did you come to be the Reporter of Decisions?
my name was brought to the attentionI had been
the head of the Elections Section in the Civil Rights
Division in the Justice Department, and I had for a
long time been interested in both law and words and
this combination, I think, was brought to the attention
of Chief Justice Warren and my dossier seemed to fill
the bill. I'll never forget an interview I had with
him when he said in effect that he would not take this
job on a bet. Well, he didn't, as most people don't,
like dotting i's and crossing t's so much; and, naturally,
it wouldn't appeal to him; but it did appeal to me and
I have no regretsin fact quite the contrary. I've
loved what I have done. I'm certainly not going to do
it forever, but I've been doing it for almost 15 years;
that's probably almost long enough.
you a word nut?
I am, and maybe that's one of the reasons that I was
recommended to Chief Justice Warren. I had as a hobby
for a long time, words. I have quite a collection of
them; and they are a lot of fun. I think that one of
the big mistakes that English teachers make, perhaps
at the grammar school level, is not to let their students
in on the fun of words. After all, life is pretty much
a matter of communication, isn't it?
are always trying to persuade somebody or to convey
emotions and that sort of thing. The only way we do
itwell, it's not the only waybut our chief
way of doing it is through words.
can smile, too, and you caught yourself.
you know, we get into situations in the Court; it is
rather amusing sometimes. The Court, like the rest of
us, will use mod words and this, I think, has the effect
sometimes of cheapening the currency of language. You
use a word just because it is in fashion and it may
not have anything to do with its real significance in
the dictionary sense; and those are values that I think
are worth preserving, at least as long as we can. Sometimes
the fashionable, a merely fashionable word, will become
good currency. But, take a word like "parameter." If
you look at that word in the dictionary, I defy you
to come up with awell, to retain a definition
in your mind as to what the word parameter really means.
you fought with any of the Justices in an attempt to
keep that word out of opinions?
I have. For a while I gave up, and then I found a great
ally in Justice Blackmun, who jokingly told me one day
that he had read the riot act to his colleagues and
said he would not vote with them in any case where they
used the word parameter. Well, parameter is supposed
to mean,and the reason it's used, I think the
Pentagon probably started this, they use the word in
the sense of perimeter or boundary. Well perimeter is
a good word; so is boundary. Why not use them?
mentioned Justice Blackmun, and recently the sharp-eyed
LSU Law FacultyI'm putting in a plug for the school,
Mr. Putzel,caught a mistake, a mistake that involved
the question whether an accused could be tried by a
jury of less than six; and Justice Blackmun's opinionit
was not for the Court, but it was his opinionmade
the point that in only three states could a jury of
less than six convict, and he then enumerated the states,
including, of all things we thought here, in this fine
jurisdiction, Louisiana. So whereupon we wrote a
note and he responded very kindly that we had caught
my question to you is, why didn't you catch the mistake?
well! I thinkthis may sound a little like confession
and avoidance, or perhaps you'll say it's a frolic and
detour, I don't knowbut that case, as I recall,
came down late in the term. I believe it was
not as late as I thought Mr. Baler:
late enough though
it was late enough, and we have a sort of pecking order
for opinions and we work on them as they come down.
We have a staff of three who carefully go over the opinions
to check all citations and quotations. That sort of
thing almost certainly would have been caught, and the
only thing I could say is that we had not gotten around
to it yet by the time you had. This is not to say that
we don't make our own bloopers. We do. And you may recall
at the top of each preliminary printlet me just
read you what it says here, and the same thing appears,
well it appears at the top of the slip opinion and at
the bottom of the preliminary printit says that:
"This preliminary print is subject to formal revision
before the bound volume is published. Users are requested
to notify the Reporter of Decisions"with the address"of
any typographical or other formal errors in order that
corrections may be made before the bound volume goes
to press." Now we get a good deal of help from the public,
from lay people, as well as from professional people.
I remember once I received a letter from a convict in
a southern penitentiaryas you know, some of them
are great jailhouse lawyerspointing out a mistake
that no one else had caught.
indeed, I did. I thanked him very much. And we had athere
was a law student at Yale who used to write me a three-page,
single-spaced letter, after a preliminary print came
out, pointing out all the errors in the opinions, and
I encouraged this and it invariably happened thatI
think he kept this preliminary print by his bedside
and read it before he went to sleep. I can think that
that would be a pretty good way of going to sleep sometimes!
good man, however, to have in the Reporter's office.
good man, indeed he was, and again in-variably at least
three or four times out of all those lines in his letter
pointing out errors there would be something we had
missed. We have a very small staff. There are only 10
in the whole office, including my secretary, a messenger,
and various others. But there are only a few of us who
bear down on these technical questions, so that it is
very helpful to have people write in and tell us about
errors in the opinions.
you recall a few egregious errors that have been caught?
that's the sort of thing where it would be nice if I
had a chance to go through my files before trying to
answer that. At the moment, I'm afraid I would just
have to make a general reply and say that there have
been several instances in which we have caught egregious
errors and I have several letters in my files from Justices
thanking us for keeping our noses to the grindstone.
kind of errors? Would they be errors per-mining to grammar,
or spelling, or indeed the substance of the law?
could be all of those, not so much substantive questions,
although there is a grey area where sometimes you get
into a substantive question.
you correct the Justices' grammar?
indeed! There are occasions when we do this and even
their spelling. You're familiar, or maybe
you aren't, with the correspondence that Holmes had
with my predecessor's predecessor?
us about that.
I was rummaging around some papers in my office, and
just by a matter of serendipity good word thatI
came across a letter that Oliver Wendell Holmes had
written to Mr. Knaebel, who had corrected the spelling
of the word "capital" and the spelling of the word "principle"
in Holmes's opinion, and Holmes very amusingly in his
own handwriting, which it took me quite a while to decipher,
by the way, thanked the Reporter for having made these
corrections and calling them to the Justice's attention.
Here's the letter that I found. As I mentioned it took
me a long time to decipher: "Dear Mr. Reporter," Holmes
wrote," 'Principle' of course was a printer's error
that I blush to have overlooked."that's spelled
"ple"" 'Capitol' "spelled with an
deliberate ignorancebut I see from the Century
and my old stand-by Worcester"our Librarian told
us the Worcester was a very, very popular dictionary
at the turn of the century; I hadn't heard of it before"and
my old stand-by Worcester that it should be Capital,
which I never knew before and do a double blush. This
is one of the few occasions," Holmes concluded, "on
which I defer to the dictionaries." Isn't that nice?
I had it framed, as a matter of fact, and it's in my
office now; and we did a little detective work, we had
to find out,fortunately the letter is datedand
it wasn't too long before that that Holmes had written
an opinion and we tracked it down. It was the case of
Wear v. Kansas, and we were
able to find it in an old slip opinion where somebody,
presumably the Reporter himself, had made the corrections
in the printed version. So, in answer to your question,
of course we do have quite a lot of spelling corrections
and a good many grammar corrections. Our batting average
on some of these things, some of my own, I guess, pet
peeves, is sometimes good, sometimes isn't. There are
certain wordsnow parameter, with the aid I have
from the Justice, is very rarely used anymore.
about restrictive and non-restrictive clauses?
Yes! Well I tried that, many years ago. The good writers
maintain a distinction between "that" and "which"; "that"
is restrictive, and "which" isn't. But even a good many
of the very impressive writers do a little backsliding
and don't observe that. I tried some years ago to get
the Court to maintain this distinction in its opinions.
I remember Justice White, after I had put this campaign
on, asked me one day, "What is the difference between
'that' and 'which' "in effect saying "why are
you being so fussy about this?" I tried to explain what
the difference was; and, I think maybe I got the point
across, but I found that later on none of the Justices
really paid any attention to the distinction. As I say,
most writers, however much they honor it in word, they
don't in deed. And I finally just threw in the sponge.
mentioned Justice White. Does he communicate often with
you about usage and grammar?
not really. I just happened to mention his name. He
wrote me a note from the benchI have to mention
in a moment something about this practice of writing
notes from the benchand one day I was sitting
in my office, and I got a note delivered by one of the
messengers in which Justice White asked me what the
word "suppletive" meant, as used in an opinion of Justice
Harlan's. Well I looked in my records. I have a copy
of my reply here. This whole thing really amused me
because we had written to Justice Harlan at the time
he used that word, as we do sometimes when we aren't
sure whether perhaps a secretary hearing dictation hasn't
misspelled something or somewhere along in the shuffle
a word gets into print that shouldn't be, and we ask
the Justice is this word intended. Well we had done
that. In my letter to Justice 'White I said, "After
receiving your note from the bench on December 7th"this
was 1976"asking for the definition of 'suppletive'
as used in Labine v. Vincent certain smoldering
memories were sparked and I took a look at the original
copy of the opinion with our editorial suggestions to
Mr. Justice Harlan. We had circled the word 'suppletive'
and asked is this the word in-tended? The definitions
in neither Webster's nor the O.E.D."that's the
Unabridged Oxford Dictionary"seemed to fit. The
reply was 'stet' leave it as it is. After all
these years our same observation holds. The definition
in Webster's II is this: 'Characterized or constituting
an instance of "suppletion" 'and 'suppletion' is defined
as 'the occurrence of phonemically unrelated alimorphs
of the same morphene whether the morphene is a base
or an affix.' Please tell me what that means!"
foreign to me, too, Mr. Putzel.
I was amused at that because it was one instance in
which we had singled out the word, couldn't find out
what it meant and either Justice Harlan or his law clerk
was satisfied that he knew what it meant, so there it
was. Now it may turn out to be aalthough I think
I must have looked it up in Black's Law Dictionary,
too, but I'm not surebut it may be a civil
law term or something of that sort. I couldn't find
assure you, we'll find out.
This is the place to ask that.
you enjoy being the reporter of Decisions?
indeed I do. I've done it now for almost 15 years. It
has brought me into contact with some marvelous people.
It gives an outlet for that idiosyncrasy I referred
to when I said I was a word nut, and I've found it very,
very rewarding. It's had its moments of trial as any
calling does, particularly, I think, when we are asked
to headnote a case at the eleventh hour, especially
if it's a complicated case, it becomes a little trying,
and I ask myself what am I doing here? Why do I have
to go through this kind of pressure? And there are other
times when going over the same material time and time
again I've become a little impatient if not exhausted.
We go through quite a refining process. We get the bench
copy, the slip opinion, and we go through that very
carefully when we've already read the opinion probably
several times for the purpose of headnoting it, and
then we make editorial suggestions after the slip copy
is issued, and then after that, we go over everything
again. We read the preliminary prints very carefully
and still make additional suggestions for editorial
ultimately it comes to the official United States Reports.
it comes into the bound volume and even there the final
word isn't on the printed page in immutable form always.
We hope it is, but once in a long time an error has
to be corrected and we have to get out an erratum notice.
I remember when I wasI hadn't been Reporter very
longand I got a telephone call from the Solicitor
of the Interior Department and he said, "Mr. Putzel,
I wish to point out an error in the United States Reports!"
My heart sank. Well, I knew this moment was going to
come sooner or later. And here it was. What had I done
wrong? Well, fortunately, my equanimity was restored
when he said, well this opinion occurred in, and then
he gave me the volume of the U. S. Reports, it was well
over 100 years before, so I felt a little better. But
since that time, I must confess there are plenty of
bloopers that I have made myself.
of errata in the Putzel volumes of the United States
Reports. Would you prefer that the volume show your
name? I suppose that's a question the answer to which
suppose vanity would say "Wouldn't that be nice." I
know my wife thinks that would be a splendid idea. But
I am afraid that the custom is now too well established
to permit that. Starting with Mr. Otto, the Reports,
following the language of an act of Congress, are called
"United States Reports" and they are cited ________
U.S. ________ and not by the Reporters' names.
But we do adhere to the tradition of citing reports
before Otto, that is ending with Wallace, with the name
of the Reporter, either in its full spelling or abbreviated.
The Reports start with, curiously enough, 2 Dallasit
would be 2 U.S. if we cited it that way. I say "curiously"
because the first volume of Dallas has no reports of
opinions of the United States Supreme Court.
you listen to the oral arguments?
do on occasion. Unfortunately the job of being Reporter
of Decisions is a demanding one and I have to stick
pretty close to my knitting. But if a big argument comes
along, one with a renowned advocate, or the issues in
a case are of commanding importance I do slip off and
go to the courtroom. I have a place reserved there for
me, so it's always there when I want to use it. And
I enjoy listening to arguments. I remember hearing Justice
Harlan once discuss a question that was asked of him,
how valuable oral arguments are. He said they were helpful
to him. I've read, I can't recall who the Justice
was who said that he didn't really pay much attention
to oral arguments. The briefs were there and not much
was added. I think some indication that something is
added comes from the transcript of oral argument which
is available after any case is argued, because from
that transcript you will see a Justice quotingnow
it may be true that he is just embellishing a point
that he would have reached anyhowbut from that
it does appear that oral argument in certain instances
helps a Justice.
you recall any memorable oral arguments that you have
heard in your fourteen years' experience?
I've heard many that were memorable. Curiously, in some
of the great cases, like the Nixon tapes case,
for example, or even the Bakke case, sometimes
the touted cases, the ones you read about in the press
so much, are not the ones that are best argued. Sometimes
fortunately they are. But, for example, in the Nixon
tapes case I thought, and this is my view only,
that the young lawyer, Phillip Lacovara, of all the
eminent people who were arguing that case, made the
most persuasive and eloquent argument. He was not many
years out of law school, or out of the Solicitor General's
office. One of my favorite advocates is Archibald Cox.
It's always a delight to listen to him argue a case
before the Court. And, of course, he argued the Bakke
case. It's a great art, it's one that I certainly
don't have and very few people do. One very good Supreme
Court advocate I know of is Frederick Bernays Wiener,
who used to be in the Solicitor General's office and
he wrote a book on how to present an appeal in the Supreme
Courta very good book, by the way,
and he was a master advocate and to this day if he argues
a case before the court he wears the cutaway that was
de rigeur and still is used by the people in
the Solicitor General's office. I have a cutaway toomy
predecessor wore his all the time in the courtroom.
When I go to the courtroom I wear it for a very ceremonial
occasion, or memorial service, or if I go to listen
as I do with the Court to the State of the Union message
in the House of Representatives, I wear the cutaway
then or perhaps to a funeral or a memorial service.
But some of the old timers still use it when they are
arguing cases before the Court.
you have a few favorite writers, either past or present,
on the Supreme Court?
glad that you included past as well as present because
it's much easier to answer that question.
Oliver Wendell Holmes, particularly in his brief dissenting
opinions, wrote some real jewels and usually did it
in the space of maybe two pages; and he was a very incisive
writer. Another writer I find very appealing,
though very often I disagreed with his opinions, was
Jackson. And Jackson had a very, very nice touch. He
expressed himself concisely and sometimes in a way that
is difficult to forget. He once remarked in, I think
it was Brown v. Allen, that
the Supreme Court wasn't final because it was infallible,
but was in-fallible because it was final. And -if you
stop to think about that, that says quite a lot.
many years were you on the Court as Reporter with Chief
Justice Earl Warren?
a little less than half the time I've been there and
I must, now that you mentioned him maybe this
is a little off the beaten pathbut the practice
of note-writing from the bench has intrigued visitors.
They see pages go to a Justice and hand a note to somebody,
often in the wives' box or maybe it's an incoming note
to a Justice. But during the period when Warren was
the Chief Justice, it was almost this time of year,
many years ago, it was in October, somebody happened
to notice that a great many notes were coming at almost
regular intervals to the Chief Justice and the messenger
would come from behind the velvet curtains and hand
the notes to the Chief Justice. He would smile or frown
or show no emotion and then another note would come
and people began to wonder what these notes could be
about. Well, it wasn't until some years later that I
found out that the world series was going on. He was
a great baseball fan, great sports fan of all kinds,
and at the end of each inning the messenger was delivering
to the bench the box score at the end of the inning.
hope the final note produced a smile.
kind of man was Earl Warren?
he was a marvelous person. I have a curious feeling:
the other night I saw a video tape of an interview by
Abram Sachar, the President of Brandeis University,
or Chancellor, whatever he is called, interviewed Warren
in a very rare interview thatI don't think Warren
had ever given an interview like that before, or quite
like thatand it evoked a good many memories. He
was at that point, it was about two years before he
died, and he had long since retired, but certain sparks
were repeated in my memory of the Chief Justice as he
used to be, and he was a marvelous person. And it's
interesting to see how video tape can perpetuate a memory
by evoking recollections from the tone of voice and
facial expressions of people who have, passed on. And
so I have mixed feelings. I think mostly feelings though
of the privilege I felt in having known him.
it a privilege to work inside the Court, day to day?
it is. There's no question about it. People can be cynical
but I think the feeling of both exhilaration and pride
that I had when I first came to the Court have not in
any way dimmed since. And I still, I still walk down
the marble halls thinking how lucky I have been to be
is changed, and not for the better. We no longer see
the reporter sitting in court, noting the oral argument
and colloquies between judge and counsel, which in the
older reports, and in those of England sometimes even
now, are so instructive and enable the reader to understand
much that he might otherwise overlook." Henry Budd,
"Reports and Some Reporters," 47 Am. L. Rev. 481,
514 (1913). Compare the remark of Chief Justice John
Marshall in 1830 to Richard Peters, then Reporter of
Decisions, who had inquired whether he should omit the
arguments of counsel from the reports so as to save
space. Responded the great Chief Justice: "I believe
we all think that the arguments at the bar ought, at
least in substance, to appear in the Reports. They certainly
contribute very much to explain the points really decided
by the Court." John Marshall to Richard Peters, March
22, 1830, in 3 Peters iv.
Wyatt, Reporter of Decisions, 1945 to 1963 (326
U. S. to 374 U. S.).
lawyers think that it is a very simple matter to
write a good headnote or a syllabus. It is, if one
knows how. But experience has shown that while every
lawyer deems himself capable, but a few can actually
perform the work. It is a work requiring special
and peculiar skill. Practice alone in the absence
of the particular ability, will not develop a good
writer." Rosbrook, "The Art of Judicial Reporting,"
10 CornelI L. Q. 103, 114 (1925).
C. Lind, now Reporter of Decisions, who succeeded
Mr. Putzel by appointment of the Court, effective
February 25, 1979.
Va. L. Rev 883 (1953). Compare "some Curious Headnotes."
108 The Law Times 467(1900).
U. 5. 392 (1970).
in every part of his work, the reporter should never
forget that the brevity, terseness, and the most
careful choice of words, are his highest duties."
"Wallace's Reports," 1 Am. L. Rev. 229, 230(1867).
In reviewing the first three volumes of Wallace,
the editors of the American Law Review concluded
that Mr. Wallace had failed miserably as a Reporter:
"But his elaborate and bombastic statements of fact
prove that he radically misconceives his office.
He takes great pains to do what is utterly unfit
to be done in a volume of reports. Before he can
begin to learn his duties, he has so much to unlearn,
he must undergo such intellectual revolution, that
we despair of him. . . . To insure us against
such reports in the future nothing less will suffice,
than that Mr. Wallace should cease to be reporter.
If this cannot be, then we demand in behalf of the
profession, an entire change in his theory and practice
of reporting. He must be more brief, more accurate,
and more modest." Id. at 237. Wallace did
not resign, however. He held on until 1876, completing
22 volumes of reports during his twelve years as
Reporter of Decisions. In taking note of Wallace's
resignation, the editors of the American Law
Review continued to fuss at him: "Still, the
experience of twelve years, so far from making him
a good reporter, has rather tended to demonstrate
his unfitness for the task of reporter of judicial
decisions; and it was with a feeling far from regret
that we heard of his resignation." 10 Am. L.
Rev. 357 (1876).
in a great while a Justice insists on having the
Reporter headnote what is said in the footnotes.
This is all wrong, says Mr. Putzel, who opposed
the practice, but to no avail. "Two of the rare
instances in which syllabi were based in part on
footnotes are: Head v. New Mexico Board, 347
U.S. 424(1963) (see numbered item 4 of syllabus),
and United States v. Gaddis, 424 U.
5. 544(1976) (see numbered item 3)." Henry Putzel,
Jr. to Paul R. Baler, March 29, 1977. Doubtless
Mr. Putzel would agree with De Quincey's comment,
in his essay on style, that "such an excrescence
as a note argues that the sentence to which it is
attached has not received the benefit of a full
development for the conception involved .. Representative
Essays on the Theory of Style 66 (Brewster,
ed., 1928). Compare Justice Frankfurter's comment
on the celebrated Carolene Products footnote,
United States v. Carolene Products Co.,
304 U. 5. 144, 152-53 n.4, which, incidentally,
was not headnoted, as follows: "A footnote hardly
seems to be an appropriate way of announcing a new
constitutional doctrine. . ." Kovacsv.
Cooper, 366 U. 5. 77, 90-91 (1949) (concurring
Henry Butler, the Reporter of Decisions from 1902
to 1915 (242-321 U.S.), in his wonderful book A
Century at the Bar of the Supreme Court of the United
States 79 (1942) exclaimed that the headnotes
"just grow as Topsy did."
headnote is a part of the case and should be as
reliable as the opinion from whence it sprang. It
is the duty then of each judgea duty which
is conscientiously performed by most judgesto
examine the headnote with care and suggest such
changes, if any, that should be made to make it
truly represent the rule announced and applied in
the opinion." Rosbrook, "The Art of Judicial Reporting,"
10 Cornell L. Q. 103, 119 (1925). But compare
the remark of one Supreme Court Justice to Charles
Henry Butler: "If the Court is not to be bound by
the headnote, as declared in several opinions, no
member of the Court should be in any way connected
with its promulgation, as it is exclusively the
expression of the ideas of the Reporter on what
the opinion holds and the Court decides." A Century
at the Bar of the Supreme Court of the United States
has not always been so. Henry Budd in his delightful
article "Reports and Some Reporters," 47 Am.
L. Rev. 481, 491-92 (1913), tells of one reporter
who, believe it or not, ignored what the court said
in its opinion in preparing his syllabus: "Bravery
of another kind has been shown by an American reporter
for, some years ago, in reading a case I found that
the syllabus contradicted the opinion of the Court.
This was explained by a note to the following effect.
The reporter cannot convince himself that the Court
intended to overthrow the law as settled by a long
course of decisions which are adverse to this opinion,
he has therefore stated the law as it is."
the true story of the Ohio syllabus rule, see the
Appendix to this article.
details as to the legal status of the headnote in
these and other states, see the Appendix.
Government, relying on the second paragraph in the
headnote to Hawley v. Diller, 178 U. S. 476,
claimed that the Detroit Lumber Company was not
a good faith purchaser of certain timber lands.
But the Government got nowhere. Reliance on the
headnote was wrong, said Justice Brewer, for several
reasons: "[un the first place, the headnote is not
the work of the court, nor does it state its decision
though a different rule it is true, is prescribed
by statute in some States. It is simply the work
of the reporter, gives his understanding of the
decision, and is prepared for the convenience of
the profession in examination of the reports." United
States v. Detroit Lumber Co., 200 U. 5. 321,
337 (1906). But this was not all. It seems that
J. C. Bancroft Davis, who reported Hawley v.
Diller during the October Term 1899, committed
false report: "And finally," said Justice Brewer,
"the headnote is a misinterpretation of the scope
of the decision."
interesting to note that Charles Henry Butler, the
Reporter of Decisions when the Detroit Lumber Co.
case came down, promptly made a headnote out of the
proposition that headnotes don't count. See paragraph
4 of Mr. Butler's syllabus, 200 U. S. at 322.
few years later another lawyer made the grave error
of trying to get Holmes's ear on the thin reed of
a Louisiana headnote. To which 0. W. H. responded:
"Reliance also is placed upon the head note of the
decision below . . . But the head note is given no
special force by statute or rule of court, as in some
States. It inaccurately represents the reasoning of
the judgment. In 129 Louisiana it is said to have
been made by the court. However, that may be, we look
to the opinion for the original and authentic statement
of the grounds of decision." Burbank v. Ernst,
232 U. S. 162, 165 (1914). It should be noted that
Mr. Butler, true to his calling, promptly made another
headnote out of this discussion. See paragraph 3 of
the syllabus to Burbank v. Ernst, 232 U. S.
at 162-63. And when the question later arose in Louisiana,
Justice Holmes's view of the importance of Louisiana
headnotes was adopted by the Louisiana Supreme Court.
See Cabral v. Victor & Provost, 181 La.
139, 158 So. 821 (1934).
Frankfurter, who followed Holmes from Harvard to the
Court, also followed Holmes on Headnotes. But F. F.,
never at a loss for words, of course insisted on his
own pen. And so in his dissenting treatise in Bisso
v. Inland Waterways Corp., 349 U. 5. 85, 100(1955),
Justice Frankfurter, speaking of certain "time-honored
rules for reading cases," professed that "cases hold
only what they decide, not what slipshod or ignorant
headnote writers state them to decide; that the decisions
are one thing, gratuitous remarks another. A stew
may be a delicious dish. But a stew is not to be made
in law by throwing together indiscriminately decision
and dictum. . ." What else is there to say?
word "parameter" has blighted the pages of the United
States Reports 23 times since 1938, or so says the
LEXIS machine. The first offender, who had better
go unnamed, spoke of the "constitutional parameters
of the copyright power" on October 19, 1971. See
Lee v. Runge, 404 U. 5. 887, 888. The latest
offense occurred in Gertz v. Robert Welch, Inc.,
418 U. 5. 323, 355 (June 25, 1974), when one of
the Justices talked about the "parameters of a 'negligence'
doctrine as applied to the news media."
his opinion in Ballew v. Georgia rejecting
a jury of less than six in all nonpetty criminal
cases, Mr. Justice Blackmun noted that "only three
States, Georgia, Louisiana, and Virginia, have reduced
the size of juries in certain nonpetty criminal
cases to five." Slip Opinion at 21. But as reported
in the Preliminary Print, Justice Blackmun's opinion
makes no mention of Louisiana: "Perhaps this explains
why only two States, Georgia and Virginia, have
reduced the size of juries in certain nonpetty criminal
cases to five." 435 U. S. at 244. And so it goes
thanks to the Reporter and his helpers.
also, a good reporter will watch the opinion carefully
for grammatical errors. There is nothing sacred
about opinions. They are written by human beings,
possessing human frailties, whose work is not necessarily
perfect, and, indeed, in many instances it is far
from perfect. Every judge is grateful to a reporter
who points out actual errors in English. Judge Story
in a letter to Mr. Richard Peters, the reporter
of the Supreme Court of the United States said:
to the correction of verbal and grammatical errors
in an opinion, I can only say for myself, that I have
always been grateful for the kindness of any reporter
of my opinions, for doing me this favor. Verbal and
grammatical errors will occasionally occur in the
most accurate writers. I have found some in my own
manuscript opinions, after careful perusual, and have
not detected them till I saw them in print. I think
it would be a disgrace to all concerned, to copy gross
material and verbal errors and misrecitals, because
everyone must know that they would at once be corrected
if seen. They mar the sense, and they pain the author.
So the occasional change of the collocation of a word
often improves and clears the sense. If a reporter
do no more than acts of this sort, removing mere blemishes,
he does all Judges a great favor. I do not believe
any good reporter in England or America ever hesitated
to do so. This is my opinion. Other persons may think
differently from me, but I have never supposed this
is not a part of the appropriate discretion of a fair
and accomplished reporter.' "Rosbrook, "The Art of
Judicial Reporting," 10 Cornell L. Q. 103, 123 (1925).
Knaebel, Reporter of Decisions, 1916 to 1943 (242
U. S. to 321 U. S.).
U. 5. 154 (1917).
to the minutest detail is likely to become an obsession
with those who do this kind of work." Rosbrook,
"The Art of Judicial Reporting," 10 Cornell L. Q.
103, 122 (1925).
all respect to my dissenting Brethren, I deem little
short of frivolous the contention that the Equal
Protection Clause prohibits enforcement of marital
obligations, in either the mandatory or the suppletive
form." Labine v. Vincent, 401 U. 5. 532,
540 (1971) (Harlan, J., concurring).
turns out that "suppletive" is indeed a civil law
term. The word means "permissive," in the sense
that a legal rule applies only if those affected
by it have not excluded its application by private
agreement. "Statutory rules may be either suppletive
or imperative. A suppletive rule applies only if
those affected by it have not excluded its application.
On the other hand, rooted in public policy considerations,
an imperative rule is applied without regard to
the intention of the individuals concerned." Badon's
Employment, Inc. v. Smith, 359 So. 2d 1284,1286
(La. 1978). The distinction between suppletive anti
mandatory rules is recognized in Article 12 of the
Louisiana Civil Code and in contemporary civil law
systems throughout the world. See generally,
Yiannopoulos, Louisiana Civil Law System §
taking note of the publication of the first two
volumes of Otto's reports, the editors of the American
Law Review observed that: "These two volumes are
entitled 'United States Reports;' and, although
they are the first of a new series, they are numbered
volumes 91 and 92. We believe that this title and
arrangement were adopted in accordance with the
wishes of the Court, instead of designating the
volumes, as heretofore, by the name of the reporter.
. ." Book Notice, 11 Am. L. Rev. 335, 337
Justice Frankfurter, as the price of a law review
contribution, once required the lads of the Harvard
Law Review, who had devised a new schoolboy scheme
for citing cases before Otto (e.g., Marbury v.
Madison, 5 U. 5. (1 Cranch) 137), to adhere
to the traditional form of citation by the name
of the reporter alone. The Justice rebuked the editors
for making the change, insisting on the "need for
preserving ancient traditions." "With the Editors,"
69 Harv. L. Rev. (Dec. 1955, p. v.). One
of Justice Frankfurter's best students, Colonel
Frederick Bernays Wiener, "whose spirit is lineal
to Plowden, Wheaton, and Wallace," Yearbook 1976
at 71, also insists on citing cases before Otto
in the traditional form. Why be so fussy about this?
Because, as the Colonel himself explains it: "Citations
to such cases other than by the name of the reporter
alone mark the brief-writer as a legal illiterate
or, at the very least, as one not very well brought
up or educated." Briefing and Arguing Federal
Appeals 228 (1967).
view is widespread that when a court comes to the
hard business of decision, it is the briefs, and
not the oral argument, which count. I think that
view is a greatly mistaken one. . . . I think that
the lawyer who depreciates the oral argument as
an effective instrument of appellate advocacy, and
stakes all on his brief, is making a great mistake."
Harlan, "What Part Does the Oral Argument Play in
the Conduct of an Appeal," 41 Cornell L. Q.
and Arguing Federal Appeals (1967), first published
as Effective Appellate Advocacy (1950), a book that
was so popular it was literally stolen off library
e.g., Lochner v. New York, 198 U. 5.
45, 74 (1905) (Holmes, J. dissenting).
U. 5. 443, 540 (1953) (Jackson, J. concurring) ("We
are not final because we are infallible, but we
are infallible only because we are final.").